Deepnarayan Upadhyay vs The State Of Madhya Pradesh
2021 Latest Caselaw 5542 MP

                                                         1                             CRA-1066-2021
                              The High Court Of Madhya Pradesh
                                         CRA-1066-2021
                                   (DEEPNARAYAN UPADHYAY Vs THE STATE OF MADHYA PRADESH)

                      10
                      Jabalpur, Dated : 16-09-2021
                            Heard through Video Conferencing.
                            Shri Prakash Upadhyay, learned counsel for the appellant.
                            Shri Tapan Bathre, learned Panel Lawyer for the respondent/State.

Heard learned counsel for the parties on IA No. 2632/2021, which is an application filed under Section 389(1) of the Cr.P.C. for suspension of jail

sentence filed on behalf of appellant No.1-Deepnarayan Upadhyay.

Appellant has been convicted for offence punishable under Sections 409/34, 420/34 and 120-B of the IPC and sentenced to undergo RI for 10 years with fine of Rs.1,000/-, RI for 7 years with fine of Rs.1,000/- and RI for 10 years with fine of Rs. 1,000/- with default stipulation respectively, vide judgment dated 12/02/2021 passed by learned Additional Sessions Judge, Beohari, District Shahdol in Sessions Trial No. 100076/2016.

Learned counsel for the appellant submits that it is alleged against the appellant that he being a Panchayat Secretary alongwith other co-accused

person misappropriated and misused Panchayat fund of total Rs.12,84,310/- on account of construction of E-Panchayat building and Bansukhi Road. Learned counsel for the appellant referring statement of the complainant- Siyasharan Gupta (PW-1), submits that as the said witnesses has admitted that appellant has been exonerated in disciplinary proceeding initiated against him for the same charges as leveled against him in this case, therefore his conviction is not tenable. In support of his contention, in this regard, learned counsel for the appellant has placed reliance on the decision of Honb'le Apex Court in the case of State of Punjab and another vs. Dalbir Singh and others reported in (2001) 9 SCC 212. Learned counsel for the appellant referring the statements of CEO-Smt. Prerna Singh (PW -2), Panchayat Co-

Signature Not ordinator- Ramavtar Saket (PW-3) and Sub-Engineer- Annapurna Gupta SAN Verified

Digitally signed by VINAY KUMAR BURMAN Date: 2021.09.17 10:49:30 IST 2 CRA-1066-2021 (PW-9), submits that allegations with regard to withdrawal of money without any work cannot be said to be proved as all above prosecution witnesses have not supported the prosecution story.

Learned counsel for the appellant further submits that Bank account statements and other documents have not been properly proved. Charges framed against him are vague and evidences produced on record are not

reliable. The whole prosecution story is doubtful. Appellant has already deposited an amount of Rs.6,42,155/- under protest. He is in custody since 12.02.2021. Appeal will take time for final disposal, therefore, remaining jail sentence of the appellant may be suspended and he may be enlarged on bail. In support of his contention, in this regard, learned counsel for the appellant has placed reliance on the decision of Honb'le Apex Court in the case of Commissioner of Wealth Tax, Delhi III, New Delhi vs. Hari Shankar & Bros. reported in (2001) 10 SCC 339, Bhagwan Rama Shinde Gosai and others vs. State of Gujarat reported in (1999) 4 SCC 421, K.C. Sareen vs. CBI, Chandigarh reported in (2001) 6 SCC 584 and in the case of Angana and another vs. State of Rajasthan reported in (2009) 3 SCC 767.

Learned Panel Lawyer for the respondent/State opposed the application and submitted that judgment of conviction and order of sentence is based on proper appreciation of oral as well as documentary evidence. He further submitted that the appellant has committed grave offence, therefore, application for suspension of custodial sentence filed by him deserves to be rejected.

Having considered rival contentions of both the parties and after perusal of the record, material pointed out by the learned counsel for the appellant specially the statement of Ramavtar Saket (PW-3) and Annapurna Gupta (PW-9) and considering other facts and circumstances of the case, I am of the opinion that a fit case for suspension of sentence is made out in favour of appellant.

Signature
 SAN      Not
Verified

Digitally signed by
VINAY KUMAR
BURMAN
Date: 2021.09.17
10:49:30 IST
                                                              3                      CRA-1066-2021

Accordingly, I.A. No.2632/2021 is allowed. It is directed that on deposit of fine amount, if not already deposited and on furnishing personal bond to the tune of Rs.1,00,000/- (Rupees One Lac Only) with one surety bond in the like amount to the satisfaction of the Trial Court for his appearance before the Registry of this Court on 14/12/2021 and on subsequent dates as may be fixed by the Registry of this Court, the appellant be released on bail and the substantive sentence under appeal shall remain suspended.

List the matter for final hearing in due course.

Certified copy as per rules.

                                                                    (SATYENDRA KUMAR SINGH)
                                                                             JUDGE


                      vinay




Signature
 SAN      Not
Verified

Digitally signed by
VINAY KUMAR
BURMAN
Date: 2021.09.17
10:49:30 IST